DECISION OF THE SOCIAL SECURITY COMMISSIONER

Commissioner’s Case No: CI/3765/2001

[ORAL HEARING]

1. I grant leave to appeal. In accordance with the provisions of regulation 11(3) of the Social Security Commissioners (Procedure) Regulations 1999 I treat this application as an appeal. The claimant and the Secretary of State have each agreed to this course of action. This appeal by the claimant succeeds. I set aside the decision of the Whittington House tribunal of 1st May 2001 as having been made in error of law. In accordance with the provisions of section 14(8)(b) of the Social Security Act 1998 I refer the case to a completely differently constituted tribunal for a fresh hearing and decision. The new tribunal is to include at least one member who has expert medical qualifications and experience in psychiatry.

2. The claimant should consider requesting the tribunal to hold an oral hearing and in default of such request consideration should in any event be given as to whether an oral hearing should be held. The claimant is strongly advised to seek legal and practical advice and assistance from an organisation such as MIND, which has considerable experience of these matters. The parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written medical or other evidence. However, the matter is not to be listed for hearing until a legally qualified panel member dealing with interlocutory matters is satisfied that the claimant has had a proper opportunity to obtain appropriate advice and medical evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

3. I held an oral hearing in this case on 22nd March 2002. The claimant attended in person and was represented by her carer, Mr R. The Secretary of State was represented by Mr Chang from the office of the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their assistance. 

4. The claimant was to have been represented by Mr John Considine, who represented her at the tribunal. Sadly, Mr Considine died at the end of January this year. I would like to pay tribute to the tireless devotion with which, notwithstanding his own health problems, he worked over many years for the interests of people with mental illness. I am sure that his loss will be keenly felt.

5. The claimant was born on 14th April 1952. On 4th January 1974 she was working as a clerk in a hospital. It appears that on that day she came into contact with blood from a broken glass containing a blood sample which either was, or which she believed or feared to be, contaminated by hepatitis. Very soon afterwards, to express it neutrally, the claimant developed mental health problems. I give these facts by way of background but it is not clear whether they are disputed and it is for the tribunal to make appropriate findings on the evidence before it. 

6. A report of 31st August 2001 from a consultant psychiatrist, which is before me, describes the claimant as suffering from “a mild schizo affective illness in the setting of a personality with anxious traits”. I do not know whether that is also intended to be a description of the claimant’s condition in previous years. Certainly there can be no doubt that she has and has had a series of health problems, and she is currently entitled to life or indefinite awards of severe disablement allowance and higher rate mobility component and middle rate care component of disability living allowance.

7. On 16th March 1999 the claimant made a claim for disablement benefit on the basis that the accident at work in 1974 had caused the development of schizophrenia. On 3rd December 1999 she was examined by Dr B on behalf of the Benefits Agency. Dr B concluded that:

“There is no scientific evidence in the medical literature to support causation of a chronic psychotic illness such as schizophrenia by such an incident as that described by the claimant”.

8. On 20th December 1999 the Secretary of State decided that the accident had not led to any loss of faculty and that there was no entitlement to disablement benefit. On 28th December 1999 the claimant appealed to the tribunal against that decision. The tribunal considered the matter on 1st May 2001. It was concerned at the claimant’s failure to produce relevant medical evidence, the claimant taking the view that although there was evidence, it was private. The tribunal took the view that the claimant was not a reliable witness and that she had given an “implausible explanation for her reticence”. I am bound to say that, although in general the question of the claimant’s reliability as a witness is one for the tribunal, it seems not to have taken into account the nature of her mental illness (and, indeed, that of her representative) in finding her explanation to be “implausible”. At the hearing before me Mr R produced lengthy extracts from an earlier report. I think that he and the claimant now accept that she should make full disclosure of the medical evidence that she has and, indeed, she indicated her willingness to submit to further medical examination or agree to the obtaining of further reports, should this be necessary. 

9. The tribunal confirmed the decision of the Secretary of State. It concluded: “However, as an expert body, the tribunal agrees with [Dr B’s] conclusion that it is medically improbable that an incident such as that described by the appellant would cause a chronic psychotic illness such as schizophrenia”. On 14th September 2001 the chairman of the tribunal refused the claimant leave to appeal to the Social Security Commissioner against the decision of the tribunal. On behalf of the Secretary of State Mr Chang opposed the application, arguing that the tribunal was entitled on the evidence before it to make the findings and decision that it did make, for the reasons that it gave. 

10. The tribunal described itself as expert. However, it was not expert in the sense that the old-style Medical Appeal Tribunal was expert. The old-style tribunal would sit with two consultants, at least one whom would be a consultant in the relevant area of medical expertise that was under consideration. So far as I can tell, neither Dr B (who examined the claimant on behalf of the Benefits Agency), nor the medical member of the tribunal, had any particular expertise in psychiatry. 

11. It is not for me to make findings of fact or to give directions on how to evaluate the evidence in this case. However, I am concerned that proper consideration seems not to have been given to the claimant's arguments. For example, under the heading "schizophrenia" in the section on metal illness, Black's Medical Dictionary (36th edition at page 445) states,

	"Undue environmental stress can precipitate a relapse".

The entry in the Oxford Concise Medical Dictionary 5th edition paperback at page 588 states:

"There are strong genetic factors in the causation, and environmental stress can precipitate illness" (my emphasis).

I am not saying that that is what happened in this case. That is for the new tribunal to determine. Nevertheless it seems to me that the previous tribunal should have done more by way of explanation than simply endorse the opinion of Dr B.

12. The effect of the "inability" of the claimant and her representative to put to the tribunal the evidence that should have been put was to deprive the claimant of an opportunity to have her case presented and considered properly. This amounted to a breach of the rules of natural justice. The tribunal's approach to her attitude, and the failure to give adequate consideration to environmental factors in schizophrenia, amounted to a failure to give adequate reasons for the decision.

13. I must warn the claimant that the new tribunal may also decide that the accident played no relevant part in the causation of her mental illness. However, whatever decision the tribunal makes, it must give full consideration to the relevant evidence and a proper explanation.

14. For the above reasons this appeal by the claimant succeeds.

H. Levenson
Commissioner

25th March 2002